125 N.E. 508 | NY | 1919
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *267 This proceeding was an accounting in the Surrogate's Court of New York county by James S. Meng, as executor of the last will and testament of Henry Bischoff, deceased. It was instituted December 22, 1915, by the filing of the petition and account of the executor, under section 2720 of the Code of Civil Procedure. The estate involved was the sum of $82,036.70, the avails of a judgment recovered, under sections 1902-1905 of the Code of Civil Procedure, as damages for negligence causing the death of the testator. The avails were paid to the executor December 2, 1915. The decree of the surrogate surcharged the account in the sum of $11,211.45, and directed a distribution of the distributable amount between the testator's widow and his two infant grandchildren. The executor appealed from the part of the decree surcharging the account. The widow appealed from the part directing that the distribution should be shared with the grandchildren. The Appellate Division affirmed the decree.
The decree surcharging the account was based upon the facts: The executor, in retaining a firm of attorneys to prosecute the action, contracted that the compensation *269 for their services in the action should be contingent upon and be one-third of the recovery. He paid them from the avails of the judgment, pursuant to the contract, the sum of $27,345.56, with which payment he credited himself in his account. The fair and reasonable value of their services, as found by the surrogate, was $15,500; their disbursements were the sum of $634.21. The executor, therefore, should have paid them the sum of $16,134.21 only.
We sustain the decree in the surcharge of the account. The surrogate had not the power to allow the executor for any expenditure by him in the action a credit exceeding a just and reasonable sum. When the action was commenced the statute provided: "The compensation of an attorney or counsellor for his services is governed by agreement, express or implied, which is not restrained by law, * * *." (Judiciary Law [Cons. Laws, chapter 30], section 474.) When the accounting proceeding was instituted section 1903 of the Code of Civil Procedure contained the provision that the reasonable expenses of the action to recover damages for a death wrongfully caused may be fixed by the surrogate upon the judicial settlement of the account of the executor or administrator maintaining the action, and may be deducted from the recovery. In this jurisdiction, and others, a contingent fee contract made between client and attorney in retaining the latter is, in the absence of legal fraud, valid. (Matter of Fitzsimons,
The decree directed the division of the distributable recovery in equal shares among the widow and the two infant grandchildren of the testator. The widow claims *271 the entire thereof. A statement here of additional facts is necessary. The testator was injured and died March 28, 1913. He left him surviving a widow and, as his only next of kin, the two infant grandchildren, the children of a deceased daughter. At the time of his death, and at all times subsequent to September 1, 1911, section 1903 of the Code of Civil Procedure contained the provisions: "The damages recovered in an action, brought as prescribed in the last section, are exclusively for the benefit of the decedent's husband or wife, and next of kin; and, when they are collected, they must be distributed by the plaintiff, as if they were unbequeathed assets, left in his hands, after payment of all debts, and expenses of administration; subject, however, to the following provisions, to wit: 1. In case the decedent shall have left him surviving a wife or husband, but no children, the damages recovered shall be for the sole benefit of such wife or husband." Those provisions became as we have quoted them through an amendment taking effect September 1, 1911. (Laws of 1911, chapter 122.) Prior to the amendment of 1911 the part of the section we have quoted was: "The damages recovered in an action, brought as prescribed in the last section, are exclusively for the benefit of the decedent's husband or wife, and next of kin; and, when they are collected, they must be distributed by the plaintiff, as if they were unbequeathed assets, left in his hands, after payment of all debts, and expenses of administration." The section as it was prior to the amendment of 1911, in connection with other statutes, which we need not quote, would, without question or dispute, have entitled the grandchildren here to share in the distribution.
The surrogate decided that the proper construction of the word "children," in the amendment of 1911 — "in case the decedent shall have left him surviving a wife, or a husband, but no children, the damages recovered *272 shall be for the sole benefit of such wife or husband" — signified children generally in a direct line, and was not limited to immediate offspring, and, therefore, the two grandchildren were beneficiaries. The Appellate Division decided that the word had its primary sense of comprehending only the immediate offspring of the decedent and, therefore, did not include the grandchildren, but decided additionally that the amendment of 1911 violated, in the instant case, section 18 of article 1 of the Constitution of the state, adopted in 1894, as follows: "The right of action now existing to recover damages for injuries resulting in death, shall never be abrogated; and the amount recoverable shall not be subject to any statutory limitation," and, therefore, did not change the section as it was prior to the amendment, under which the grandchildren were beneficiaries.
We approve of the decision of the Appellate Division that the word "children" in the amendment did not include the grandchildren, and the reasoning which supports it. The language of the sections (1902-1905) relating to the action is not in any aspect or application inimical to the primary and common meaning of the term "children" as immediate descendants, or indicative that the term should have the very comprehensive meaning of descendants generally. The reasoning of Mr. Justice SHEARN, concerning this question, in the court below (Matter of Meng,
The amendment of 1911 does not, because it enacts as we have stated, infract section 18 of article 1 of the Constitution of the state, which became in force January 1, 1895. It did not abrogate the right of action to recover damages for injuries resulting in death as that right existed prior to the adoption of the constitutional provision. The right of action is, of course, and at all times during its existence has been, wholly statutory. At common law a civil action would not lie for causing the death of a human being. Legislative enactments, within constitutional limitations, are the exclusive source and boundary of the liability and the remedy. They may create the cause of action, define the period of its existence, and the party by whom and the method in which it shall be enforced, and prescribe the measure of damages and the beneficiaries. This doctrine is firmly established in the law of this state. The whole subject is covered by the sections of the Code. The concrete question to be answered by us is: Did the amendment of section 1903, adopted in 1911, enacting that the spouse of the decedent should alone, in the absence of children of the decedent, receive the damages, instead of the spouse and the next of kin, abrogate the right of action existing on December 31, 1894, to recover damages for injuries resulting in death. At that date sections 1902-1905 of the Code of Civil Procedure, as then existing, exclusively defined and continued the right of action, and prescribed the measure of damages and the method of the distribution and the distributees of them.
The Constitution interdicts the abrogation of "the right of action now (that is, on December 31, 1894) existing." The right of action then existing was the right to prosecute, with effect, an action to recover damages for *274
injuries resulting in death. The right to prosecute, with effect, such action was constituted of the facts which, under the statute, authorized a party to maintain the action against another. The facts which authorize the maintenance of the action constitute the right of action. A right of action existing at any time is not abrogated so long as the facts which give rise to it and which must be proven to maintain it are unchanged. (Patterson v. Patterson,
On December 31, 1894, the section 1902 was: "The executor or administrator of a decedent, who has left, him or her surviving, a husband, wife, or next of kin, may maintain an action to recover damages for a wrongful act, neglect, or default, by which the decedent's death was caused, against a natural person who, or a corporation which, would have been liable to an action in favor of the decedent, by reason thereof, if death had not ensued. Such an action must be commenced within two years after the decedent's death." Sections 1903, 1904 and 1905 designated as the beneficiaries of the damages the spouse and the next of kin of the decedent, and the measure and distribution of damages. The measure of damages has not been changed. In 1909, by amendment (Laws of 1909, chapter 221), there was added to section 1902 the words: "When the husband, wife or next of kin do not participate in the estate of the decedent, under a will appointing an executor, other than such husband, wife or next of kin, who refuses to bring such action, then such husband, wife or next of kin shall be entitled to have an administrator appointed for the purpose of prosecuting such action for their benefit." In 1915, by amendment (Laws of 1915, chapter 620), there was interpolated in the first sentence of the section immediately following the words "The executor or administrator" the words: "duly appointed in this state, or in *275 any other state, territory or district of the United States, or in any foreign country." Section 1903 was amended in 1911 as we have stated; in 1904 (Laws of 1904, chapter 515) in a manner immaterial here, and in 1915 (Laws of 1915, chapter 641), so as to make it applicable to damages obtained through a settlement without action, and so as to declare the original direction of distribution subject to two modifying provisions additional to that enacted in the amendment of 1911.
Manifestly section 1902 declares, and prior to January 1, 1895, declared, the facts from which the right of action arises. The facts declared by it have remained unchanged. The amendments to it have not added to or taken from those facts. Those facts, (a) the death of a human being, (b) caused by the wrongful act, neglect, or default of another, (c) who or which would have been liable to an action in favor of the decedent, by reason thereof, if death had not ensued, (d) a husband, wife or next of kin of the decedent surviving the decedent and, (e) a personal representative of the decedent having been appointed, constituted a right of action to the personal representative. It was thus prior and subsequent to the amendment of 1911. The amendments to section 1902, subsequent to 1894, have not altered those facts from which the right of action has arisen. Whenever, in the trial of the action, those facts have been or are proven and found to exist the representative has maintained the action and has been or is entitled to a judgment for damages. (Oldfield v. NewYork H.R.R. Co.,
The executor and the grandchildren assert and argue: Prior to the amendment of 1911 the right of action was a collective right of the spouse and next of kin of the *276
decedent; the amendment transformed it (no children surviving), into a right of action for the spouse alone; therefore the amendment abrogated the right of action belonging to the next of kin and guaranteed to them by the Constitution. "It is quite clear, therefore," the executor states," that the amendment to section 1903 does not merely purport to regulate thedistribution of damages, but purports to limit the cause ofaction by excluding therefrom the right of action which was guaranteed to certain next of kin (in this particular case the testator's grandchildren), by virtue of the constitutional amendment." Therefore, the amendment violates the Constitution and is void. The first proposition of the assertion is erroneous. The right of action was not a right of action of the spouse and next of kin. The statute did not, at the taking effect of section 18, article 1 of the Constitution, vest the right of action in or give it to any of the statutory distributees of the damages recovered. The statute vested the right of action exclusively in the representative of the decedent; it vested the right to the damages exclusively in the spouse and next of kin. It "declares that a right of action arises to the administrator." (Quin v.Moore,
The right to the damages is not a constituent part of the right of action. The ownership of the next of kin, prior to January 1, 1895, of a part of the damages recovered, was not a fact upon which the right of action at all depended. The right of action creates, in conjunction with the remedy, the right to damages. Before the right to damages exists or accrues the right of action must be complete and perfect. Could and should one of several distributees, during the pendency, or prior to the commencement, of the action, release to the defendant or party liable his right to share in the recovery, thus destroying the right, the right of action would not be abrogated or affected. The amount of the damages recoverable might be lessened, but the facts which constituted the right of action and the right would continue. In this statutory action the statutory direction of 1911, changing the recipients of the distribution and continuing to confine them to those for whose benefit the statute, within its clear and expressed intendment, was enacted, did not abrogate the right of action. Inasmuch as the death of the decedent occurred subsequent to the amendment of 1911, the rights of the grandchildren were, obviously, subject to the force of the amendment.
The order of the Appellate Division should be reversed and the decree of the Surrogate's Court modified so as to decree that Elizabeth Bischoff is entitled to and be paid the entire distributable balance of the recovery in the death action with accrued interest thereof, with costs in the Appellate Division and in this court to the special guardian, respondent, payable out of the fund. *279
HISCOCK, Ch. J., CHASE, HOGAN, McLAUGHLIN and CRANE, JJ., concur; POUND, J., dissents and votes for affirmance on the ground that the legislative language and policy should not be construed as excluding grandchildren from participating in the recovery.
Order reversed, etc.